Common use of Superpriority Claims and Liens Clause in Contracts

Superpriority Claims and Liens. Each Note Party hereby covenants, represents and warrants that, upon entry of the Interim Order (and the Final Order, as applicable), the Obligations of the Note Parties under the Note Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute allowed administrative expense claims in the Case having priority over all administrative expenses of the kind specified in Sections 503(b), 507(a) or 507(b) of the Bankruptcy Code; provided that, notwithstanding anything herein to the contrary, the cash collateral pledged to secure the Existing Letters of Credit shall not be subject to such claim and such claims shall not be paid from such collateral; provided, further, that to the extent any of such collateral is released from the security interests to secure the Existing Letters of Credit, it shall be subject to such super priority claims under this Section 1.12(i); (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected first priority Lien on all tangible and intangible property of the Note Parties other than the Excluded Property (defined below) that is not subject to an Existing Lien as of the Petition Date; including, but not limited to claims and causes of action arising under sections 502(d), 544, 545, 547, 548, 549, 550, 551, 553(b), 723(a) or 724(a) of the Bankruptcy Code, the “Avoidance Actions”) (it being understood that the Liens so granted on the Avoidance Actions shall be subject to the entry of the Final Order); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all tangible and intangible property of the Note Parties other than the Excluded Property (defined below) that is subject to an Existing Lien as of the Petition Date (other than Primed Liens), junior to such Existing Lien; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a perfected first priority Lien, senior and priming to the Primed Liens, on all of the tangible and intangible property of the Note Parties (other than the Excluded Property) that is subject to a lien or security interest securing the First Mortgage Notes; provided, however, that the Liens described in this subsection (iv) shall be subject to the Carve Out and junior to Permitted Senior Prior Liens (as described in the Interim Order and the Final Order, as applicable); in the case of each of clauses (i) through (iv) above subject only to the Carve Out and the liens granted to secure the Existing Letters of Credit. For purposes of this section, “Excluded Property” means (i) any assets upon which security may not be lawfully granted, and (ii) 35% of the issued and outstanding Voting Stock of any new or existing Foreign Subsidiary (other than Constar UK, of which 100% of the outstanding Voting Stock shall be subject to the liens granted hereto) and, for the avoidance of doubt, 100% of the issued and outstanding Voting Stock of any new or existing Foreign Subsidiary not owned directly by a Note Party or Domestic Subsidiary of a Note Party. For the avoidance of doubt, the first lien collateral securing the obligations under the Pre-Petition Revolving Credit Agreement (the “GE Credit Agreement Collateral”) shall be Unencumbered Property (as defined in the Orders) upon repayment of the obligations under the Pre-Petition Revolving Credit Agreement and the Obligations shall at all times be secured by a perfected first priority Lien on the GE Credit Agreement Collateral.

Superpriority Claims and Liens. Each Note Party Borrower hereby covenants, represents and warrants that, upon entry of the Interim Order (and the Final Order, as applicable), the Obligations of the Note Parties Borrower under the Note Loan Documents: : (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute joint and several allowed superpriority administrative expense claims in the Case having priority over all administrative other costs and expenses of the kind specified in in, or ordered pursuant to, Sections 105, 326, 330, 331, 503(b), 506(c), 507(a) ), 507(b), 726 or 507(b) any other provisions of the Bankruptcy Code; provided that, notwithstanding anything herein to the contrary, the cash collateral pledged to secure the Existing Letters of Credit shall not be subject to such claim and such claims shall not be paid from such collateral; provided, further, that to the extent any of such collateral is released from the security interests to secure the Existing Letters of Credit, it shall be subject to such super priority claims under this Section 1.12(i); (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected first priority Lien on all tangible and intangible property of the Note Parties other than the Excluded Property (defined below) Borrower that is not subject to an Existing Lien as of the Petition Date; including, but not limited to claims and causes of action arising under sections 502(d), 544, 545, 547, 548, 549, 550, 551, 553(b), 723(a) or 724(a) of the Bankruptcy Code, the “Avoidance Actions”) post-petition Permitted Liens (it being understood that the Liens so granted on the other than Avoidance Actions shall be subject to and the entry of the Final Orderproceeds therefrom); ; and (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all tangible and intangible property of the Note Parties other than the Excluded Property (defined below) Borrower that is subject to an Existing Lien as of the Petition Date (other than Primed post-petition Permitted Liens), junior to such Existing Lien; and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a perfected first priority Lien, senior and priming to the Primed Permitted Liens, on all of the tangible and intangible property of the Note Parties (other than the Excluded Property) that is subject to a lien or security interest securing the First Mortgage Notes; provided, however, that the Liens described in this subsection (iv) shall be subject to the Carve Out and junior to Permitted Senior Prior Liens (as described in the Interim Order and the Final Order, as applicable); in the case of each of clauses (i) through (iviii) above subject only to on and after delivery of notice by the Carve Out Lender to the Borrower (and its counsel), the UST and counsel to the Creditors’ Committee, if applicable, that an Event of Default has occurred and is continuing and the liens granted Lender desires to secure trigger the Existing Letters Carve-Out (a “Carve-Out Trigger Notice”), the Carve-Out (as defined below); provided that, except as otherwise provided in the Order, no portion of Creditthe Carve-Out shall be utilized for the payment of professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of Borrower owing to the lender, agents or indemnified parties under this Agreement. For purposes of this section, “Excluded PropertyCarve-Out” means the (ia) unpaid fees of the Clerk of the Bankruptcy Court and the U.S. Trustee pursuant to 28 U.S.C. § 1930(a), (b) unpaid and allowed fees and expenses of professional persons, retained by the Borrower or any assets upon which security may not be lawfully grantedCreditors’ Committee (collectively, the “Professionals”), in each case, incurred on and prior to delivery of a Carve-Out Trigger Notice and (iic) 35% unpaid and allowed fees and expenses of the issued and outstanding Voting Stock of any new or existing Foreign Subsidiary (other than Constar UK, of which 100% of the outstanding Voting Stock shall be subject Professionals incurred subsequent to the liens granted hereto) and, for the avoidance of doubt, 100% of the issued and outstanding Voting Stock of any new or existing Foreign Subsidiary not owned directly by a Note Party or Domestic Subsidiary delivery of a Note PartyCarve-Out Trigger Notice, in an aggregate amount not to exceed $250,000 (the “Professional Expense Cap”). For the avoidance of doubt, the first lien collateral securing Professional Expense Cap shall only apply after the obligations under the Predelivery of a Carve-Petition Revolving Credit Agreement (the “GE Credit Agreement Collateral”) Out Trigger Notice. The Professional Expense Cap shall be Unencumbered Property (reduced, dollar for dollar, by the amount of any fees, costs and expenses incurred and paid to Professionals subsequent to delivery of a Carve-Out Trigger Notice. The Lender agrees that Borrower shall be permitted to pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. § 330 and 11 U.S.C. § 331, as defined in the Orders) upon repayment same may be due and payable, and the same shall not reduce the Carve-Out prior to the delivery of a Carve-Out Trigger Notice. The foregoing shall not be construed as a consent to the allowance of any fees and expenses referred to above and shall not affect the right of the obligations under Lender to object to the Pre-Petition Revolving Credit Agreement allowance and the Obligations shall at all times be secured by a perfected first priority Lien on the GE Credit Agreement Collateralpayment of such amounts.

Superpriority Claims and Liens. Each Note Party The Borrower hereby covenants, represents and warrants that, upon entry of the Interim Order (and the Final DIP Order, as applicableand subject to the Carve-Out (defined below), the Obligations of the Note Parties Borrower under the Note Loan Documents: : (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute allowed administrative expense superpriority claims in the Case having priority over all administrative other costs and expenses of the kind specified in in, or ordered pursuant to, Sections 105, 326, 330, 331, 503(b), 506(c), 507(a) ), 507(b), 726 or 507(b) any other provisions of the Bankruptcy Code; provided that, notwithstanding anything herein to the contrary, the cash collateral pledged to secure the Existing Letters of Credit shall not be subject to such claim and such claims shall not be paid from such collateral; provided, further, that to the extent any of such collateral is released from the security interests to secure the Existing Letters of Credit, it shall be subject to such super priority claims under this Section 1.12(i); (ii) pursuant to Section Sections 364(c)(2) and 364(d)(1) of the Bankruptcy Code, shall at all times be secured by a perfected first priority Lien on all tangible and intangible property of the Note Parties other than the Excluded Property (defined below) Borrower that is not subject to an Existing Lien as of the Petition Datepost-petition Permitted Liens; including, but not limited to claims and causes of action arising under sections 502(d), 544, 545, 547, 548, 549, 550, 551, 553(b), 723(a) or 724(a) of the Bankruptcy Code, the “Avoidance Actions”) (it being understood that the Liens so granted on the Avoidance Actions shall be subject to the entry of the Final Order); (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien upon all tangible and intangible property of the Note Parties other than the Excluded Property (defined below) Borrower that is subject to an Existing Lien as of the Petition Date (other than Primed Permitted Liens), junior to such Existing Lien; and Permitted Liens. “Carve-Out” means the (iva) pursuant to Section 364(d)(1) unpaid fees of the Clerk of the Bankruptcy CodeCourt and the UST pursuant to 28 U.S.C. § 1930(a), shall be secured by a perfected first priority Lien, senior (b) unpaid and priming to the Primed Liens, on all allowed fees and expenses of the tangible Borrowers’ attorneys, a chief restructuring officer for the Borrower, one financial advisor for the Borrower, one investment banker for the Borrower, a claims agent, and intangible property of attorneys for the Note Parties Creditors’ Committee (other than collectively, the Excluded Property) that is subject to a lien or security interest securing the First Mortgage Notes; provided“Professionals”), however, that the Liens described in this subsection (iv) shall be subject to the Carve Out and junior to Permitted Senior Prior Liens (as described in the Interim Order and the Final Order, as applicable); in the case of each of clauses (i) through (iv) above subject but only to the Carve extent approved by the Lender in the Budget, and only if incurred before the delivery of a Carve-Out and the liens granted to secure the Existing Letters of Credit. For purposes of this section, “Excluded Property” means (i) any assets upon which security may not be lawfully grantedTrigger Notice, and (iic) 35% unpaid and allowed fees and expenses of Professionals in an aggregate amount not to exceed $100,000 (the issued and outstanding Voting Stock “Professional Expense Cap”) incurred after delivery of any new or existing Foreign Subsidiary (other than Constar UK, of which 100% of notice by the outstanding Voting Stock shall be subject Lender to the liens granted hereto) andBorrower (and its counsel), for the avoidance UST and counsel to the Creditors’ Committee, if applicable, that an Event of doubt, 100% of the issued Default has occurred and outstanding Voting Stock of any new or existing Foreign Subsidiary not owned directly by is continuing (a Note Party or Domestic Subsidiary of a Note Party“Carve-Out Trigger Notice”). For the avoidance of doubt, the first lien collateral securing Professional Expense Cap shall only apply after the obligations under the Predelivery of a Carve-Petition Revolving Credit Agreement (the “GE Credit Agreement Collateral”) Out Trigger Notice. The Professional Expense Cap shall be Unencumbered Property (as defined in reduced, dollar-for-dollar, by the Orders) upon repayment amount of any fees, costs and expenses incurred and paid to Professionals after delivery of a Carve-Out Trigger Notice. No portion of the obligations Carve-Out may be used to pay professional fees and disbursements incurred in connection with any challenge to the amount, extent, priority, validity, perfection or enforcement of the indebtedness of the Borrower owing to the Lender or any Indemnitee. The Borrower may pay compensation and reimbursement of expenses allowed and payable under 11 U.S.C. § 330 and 11 U.S.C. § 331, as the Pre-Petition Revolving Credit Agreement same may be due and payable, and the Obligations same shall at all times not reduce the Carve-Out prior to the delivery of a Carve-Out Trigger Notice. The foregoing shall not be secured by construed as a perfected first priority Lien on consent to the GE Credit Agreement Collateralallowance of any fees and expenses referred to above and shall not affect the right of the Lender to object to the allowance and payment of such amounts.